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Is There a RAT in the Stimulus?

Byron York reports on a brewing controversy over a little-noticed provision in the stimulus bill to create the Recovery Accountability and Transparency (RAT) Board. This entity would, among other things, have some degree of oversight over agency inspectors general and the Board's chair would be appointed by the President. According to Senator Charles Grassley (R-IA), this provision was "snuck in" and "strikes at the heart of the independence of inspectors general."

What seems to have some upset is that the Board will have authority to request that "an inspector general conduct or refrain from conducting an audit or investigation." At first blush, this would seem to give the White House the ability to inhibit IGs from conducting independent oversight of agency functions. But after looking at the relevant provision, I am skeptical. Here's the text:

SECTION 1527: INDEPENDENCE OF INSPECTORS GENERAL

(a) Independent Authority- Nothing in this subtitle shall affect the independent authority of an inspector general to determine whether to conduct an audit or investigation of covered funds.

(b) Requests by Board- If the Board requests that an inspector general conduct or refrain from conducting an audit or investigation and the inspector general rejects the request in whole or in part, the inspector general shall, not later than 30 days after rejecting the request, submit a report to the Board, the head of the applicable agency, and the congressional committees of jurisdiction, including the Committees on Appropriations of the Senate and House of Representatives. The report shall state the reasons that the inspector general has rejected the request in whole or in part. The inspector general's decision shall be final.

It seems to me that this language adequately protects IG independence. While I suppose some IGs might find it to be a hassle to have to respond to a Board request, the facts that the IG's decision is "final" and that the IG's response to any RAT request will be widely distributed would suggest this provision is as likely to discourage White House meddling as it is to discourage effective IG oversight. Moreover, given that the Board will be dominated by IGs from various departments, I doubt the Board will be subject to much White House control. So while I am not sure why it was necessary to create the RAT Board in the first place, I don't see what all the fuss is about.

UPDATE: Government Executive reports on the story here. Apparently the language of this provision as initially proposed by the White House did threaten IG independence, before being neutered in Conference.

Ody (mail):
The are a few reasons to fuss about it.

Why sneak it in at the last minute?

Why is it in the stimulus package?

Why have it in at all given the Inspectors General Reform Act?

However, I think the major reason to fuss is that this is an obvious first step towards having a White House with more influence over the IG.

Imagine if you will... if this had taken place in legislation passed by the Bush Administration.
2.19.2009 6:20pm
Oren:

What seems to have some upset is that the Board will have authority to request that "an inspector general conduct or refrain from conducting an audit or investigation."

In general, what does "authority to request" even mean? I'm pretty sure I (personally) already have the authority to call up the DOJIJ and ask him to conduct or refrain conducting an investigation.

Where's the beef.
2.19.2009 6:26pm
Crunchy Frog:

The inspector general's decision shall be final.

...and if he knows what's good for him, the final decision will be whatever the administration (as expressed by the Rat Squad) wants it to be.
2.19.2009 6:34pm
David Walser:
Professor Adler,

I think you're either a tad naive or being disingenuous. York points out that the board cannot force the IG's hand; it can just make the IG's life miserable. The White House will not have absolute control over the IGs; it'll just have substantial influence and suasion. The net result is the IGs will be substantially less independent than they were before.

As a thought experiment, how do you suppose this would have been viewed had Republican's given Bush similar authority? Given the the controversy that raged over the President's firing US Attorneys -- and the fact political considerations may have influenced the firing and hiring of such (political!) appointees -- it's not credible to believe many wouldn't be concerned about the increased influence the President will have over officers that are supposed to be insulated from political considerations. That is, they would have been concerned if Obama were a Republican.
2.19.2009 6:36pm
ohwilleke:
Sounds like a group that functions similarly to an ombudsman, much like a Congressional case worker might. It also bears some similarity to the GAO.

Presumably the "refrain from" language, when coupled with the disclosure requirement, is targeted at investigations that are conducted for political purposes or for harassment.

The potentially troubling cases are the ones where the IG assents to a request, rather than refuses one. But, this probably just plays into typical bureaucratic behavior. It is easier to back down from a mistake or error in judgment, if it comes from one's peers and isn't made public.

The virtue of RAT may be mostly to alleviate the fear of disclosure that whistleblowers have, because whistle blower claims for federal civil servants have a really awful record of success in the existing system.
2.19.2009 6:36pm
Le Messurier (mail):
Johnathan Adler:

But after looking at the relevant provision, I am skeptical. Here's the text:

Crunchy Frog:

..and if he knows what's good for him, the final decision will be whatever the administration (as expressed by the Rat Squad) wants it to be.

Adler I don't see why Crunchy Frog's conclusion is so difficult to arrive at. Pretty obvious to me. And I thought I was naive!
2.19.2009 6:40pm
Steve:
I think Prof. Adler is quite right. There's an awful lot of sunlight if this board tries to lean on one of the IGs.

Generally speaking, the IGs are a force for good, but I think it was clear under Bush that they're not all gems. Presumably that did not begin with Bush nor did it end with him. The mechanism provided by this bill should be helpful.

I guess we're supposed to pretend that without this bill, it would be impossible for the White House to pressure an IG to conduct or not conduct a particular investigation. Does anyone really believe that?
2.19.2009 6:41pm
Jonathan H. Adler (mail) (www):
Mr. Walser, et al. --

The White House has always had the ability to lean on IGs, so there is nothing new in that respect. But these provisions formalize any such interaction with IGs, explicitly preserve the IGs authority, and create a paper trail that goes to multiple Congressional committees (and that will, as a consequence, inevitably become public). Moreover, all but one member of the Board will consist of other IGs, which further makes this to be an unlikely source of White House pressure. So I just don't see much of a threat in these provisions.

JHA
2.19.2009 6:56pm
A.S.:
"Moreover, all but one member of the Board will consist of other IGs, which further makes this to be an unlikely source of White House pressure."

Who appoints the other IGs?
2.19.2009 7:00pm
Oren:

York points out that the board cannot force the IG's hand; it can just make the IG's life miserable.

What does the bill let the WH do to the IG that they can't already? Make her file a report?

Meanwhile, I'm still waiting for the unitary-executive crowd to tell me that no statute can limit the authority of Obama to direct his IGs, including directing them to terminate investigations or tender their resignations.
2.19.2009 7:04pm
federale86 (mail) (www):
It certainly gives cover to those IGs who don't want to do their job and I am sure Obama will be appointing many of those. Just like a current AG who will not be prosecuting Obama for accepting a thing of value, a loan at a lower rate than the general public, from his lender to buy a house. It appears some crimes are not going to be prosecuted in this Administration. But then, didn't Congress oppose the Unitary Executive just some months ago? I guess the non-Unitary Executive has been thrown under the bus.
2.19.2009 7:08pm
Richard Aubrey (mail):
It was neutered in conference.
So the original intent was something else.
Can't fault a guy for trying.
2.19.2009 7:09pm
Guest12345:

Can't fault a guy for trying.


Eh? Doesn't "a guy" know he won an election? In the executive branch and therefore should keep his nose out of the affairs of the legislative branch? Seems quite rotten for the white house to be peddling legislation.
2.19.2009 7:46pm
Sarcastro (www):

Seems quite rotten for the white house to be peddling legislation.

Yeah, I thought I smelled a rat when that whole "President proposes legislation" thing started in 1800 or so.
2.19.2009 8:01pm
ReaderY:
Rat on!
2.19.2009 8:17pm
smitty1e:
Have you walked around DC after dark?
I saw a giant rat at L'Enfant Plaza.
I asked: "What district do you represent?"
2.19.2009 8:54pm
Guest12345:

Yeah, I thought I smelled a rat when that whole "President proposes legislation" thing started in 1800 or so.


You are older than I had imagined.
2.19.2009 10:08pm
Adam J:
The article seems a bit bizarre, complaining about transparency when the provision itself increases the transparency of the IG's decisions to investigage/not investigate wrongdoing.
2.20.2009 10:53am
gab:
Is "snuck" even a word?
2.20.2009 1:53pm
RJL (mail):
This puts a presidential appointee in the middle of the decision making process concerning whether to commence or stop an investigation. There is, at the very least, a real risk that the chairman, appointed by the President, would tip off the administration (Rahm) of what the IGs are looking into. Somehow, if the potential for Karl Rove to be tipped off concerning IG investigations had come up during the Bush years, I suspect that there would have been quite the outcry. It is hard to see how having a presidential mole chairing the IG meetings is going to lead to more independence.
2.20.2009 6:05pm
BilltheK:
It seems to me that this provision would have trumped the IG system, making it essentially ineffective for the important stuff and later (the slippery slope argument)would become a super bureaucracy within the bureaucracy. The last entry about Rahm and Rove highlights this issue.

I don't seem to see any mention of the dampening effect on the potential whistle blower. Two scenarios. Where the IG is forced to end an investigated tipped of by a whistle blower (why care)is one. The other is where the RAT Squad threatens to start a counter investigation against the whistle blower should they go ahead and whistle.
2.21.2009 9:51am
BilltheK:
And another thing...while Grassley, a Republican, seems to be the one who got this neutered. What happens when the unitary executive spills over to Congress because of a super majority in Congress of her party? Didn't the outing of a President's firing of US Attorneys happen in a Congress controlled by the other party? Isn't this situation a good prototype for what would happen with the RAT Squad?
2.21.2009 10:00am

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